The years 2019-20 have been described as the ‘year of protests’ for the numerous displays of dissent and protests organized worldwide, both on ground and on social media. The increase in the number of protests may have been indicative of a surge in an authoritarian style of leadership and resultant objections to legislative, judicial and executive measures taken by contemporary leaders. This attribution is variable from region to region. 

In India alone, there have been several shows of dissent since 2019- following the abrogation of Article 370¹, the amendment² of the Citizenship Act³ as well as the expedition of the Farm Bills⁴. All of these events were distinct causes for disaccord and they gave rise to apprehensions within different sections of society. One commonality in these movements is in the response tendered by the State. This response is one of abandonment and of hostility insofar as the State began bearing down on activists, dissidents and protesters. 

Before proceeding on the substantive issues of criminalizing dissent, it is important to recall the various instances upon which the State has turned a protest into a National Security issue. One of the most glaring suppressions is said to have occurred in the arrest of Human Rights activists and defenders in the aftermath of the 2018 Bhima Koregaon Incident, which was initially the site of the Elgar Parishad conference.⁵ The terrorism charges brought against sixteen defenders of India’s Dalit, indigenous and tribal communities invited international attention.⁶ Fr. Stan Swamy, 84 years old, died on a ventilator after having developed serious medical complications. His previous petitions for bail were repeatedly denied.⁷ More than three years since the incident, all the other arrested persons continue to languish in jail with no visible signs of a trial in the near future.⁸

After the abrogation of Article 370 and revocation of Jammu and Kashmir’s statehood, several leaders of the valley were placed under ‘preventive detention’ and house arrest through the draconian Public Safety Act.⁹ This move was understood to have been for the prevention of protests and demonstrations against the high-handed actions of the State.¹⁰

Similar violations have been recorded in the prolonged detention of numerous student leaders involved in the Anti-CAA protests at the National Capital. The Delhi High Court in a recent order¹¹ granted bail to three such student-protesters. These three protesters, among others, were charged with disruptive activities and terrorism under the draconian Unlawful Activities Prevention Act¹² in the backwash of the north-east Delhi riots. Proponents of free-speech received this bail order with much aplomb, but it is yet to be seen whether the accused will be exonerated once the trial commences. It is expected that the prosecution will summon 740 witnesses to testify against the accused.¹³ 

Nevertheless, it must be appreciated that after nearly a year of incarceration, the three student-protesters remain in high spirits and announced their resolve to challenge what they cannot accept in a democratic society. The grant of bail is undoubtedly a victory for democracy, if not the protesters themselves. 

The Farmers’ Protests of 2020-21 were among the more well-received demonstrations against the Government’s policies.¹⁴ However, these protests too were accused of being guided by anti-national forces and separatist forces.¹⁵ Following the unexpected violence at the Red Fort on Republic Day (2021), the Delhi Police invoked the UAPA and Sedition laws against certain protesters.¹⁶

While it appears that every case of arrest and eventual release could mean a victory in the Macro-perspective, the author seeks to highlight the revolting treatment of protesters as opposed to the simple dismissal of their cause. Much of the impact of arrests is felt by the arrested persons, protesters and stakeholders outside of the criminal justice system, outside of their jail cell, and outside of the site of protests. This paper examines the pressing social and developmental costs that the victims of arbitrary incarceration and State persecution themselves may face in the long run, even if they are let off on bail or released in a few months. It argues that the arrests of the State are not aimed at just deterrence but also an incapacitation of the protesters’ agency.

In Democratic societies, the freedom of assembly, association and expression are essential to ensuring effective participation in the democratic process.¹⁷ Needless to say, an adequate protection of these freedoms would safeguard against the criminalization of protests as well. The absence of such protection is a protuberant reason for the abuse of due process in India.

India recognizes the right to protest as a fundamental right, which serves as a foundation for the organic development of a democratic society. In the case of Amit Sahani v. Commissioner of Police and Ors¹⁸, the Supreme Court acknowledged the right to protest while laying down certain limitations for the exercise of that right. This verdict acknowledged India’s freedom struggle against the colonial government and conceded the crucial role of dissent in the creation of our democracy. However, the Court observed that the veracity of dissent and protests against the colonial government cannot be replicated in protests against the Indian Democratic State. The right to protest is said to be circumscribed by certain responsibilities and duties. 

Similarly, in the case of Mazdoor Kisan Shakti Sangathan v Union of India and Anr¹⁹, the Court was in favour of regulating and restricting the scope of protests to certain earmarked spaces. The Court claimed that it sought to balance the rights of protesters against the interests of residents of nearby localities.  Essentially, the Supreme Court has legitimized restrictions on the right to protest and the freedom of assembly in the guise of protecting public interest and maintaining public order under Section 144 of the CrPC. The only ratio given by the Supreme Court in regard of reasonability of restrictions was in 1973, in the case of Himat Lal K Shah v Commissioner of Police, Ahmedabad and Anr.²⁰ The Court held that the requirement of prior permission confers naked and arbitrary powers on the Commissioner of Police to restrict the freedom of assembly and movement. The rules that granted such powers to the relevant authority were held to be ultra vires Articles 19(1)(a) and 19(1)(b).

Hitherto, the Supreme Court has not laid down any guidelines for the proportionate and fair treatment of protesters and persons involved in demonstrations. In laying down restrictions on protests, the Court has not specified at what point these restrictions must be enforced, and when there may be an actual endangerment of public interests. This is why we observe the recurrent invocation of the rights of the public in stifling dissent. Frequently, it is under the bogey of national security, public order, communal discord that protests are delegitimized and protesters arrested. Such an open-ended judicial pronouncement makes restrictions on the right to protests extremely malleable and against the spirit of permissible restrictions as enunciated by the Supreme Court in Anuradha Bhasin v. Union of India.²¹ The right to protest in India has been constructed by the Courts in a manner that does not protect the principle of dissent much less the rights of protesters. 

In present-day democratic societies, the act of protesting need not be in derogation of the law, against public policy or even disruptive in character. 

In claiming that arresting protest leaders, activists and dissidents is necessary to maintain public order, the State finds a convenient springboard to eliminate ‘threats.’ Arrests and allegations are a simpler resort for law enforcement to coerce a provisional solution and brook public opposition in their handling of the issue.²² It is here that the refusal to use less costly measures²³ toward the maintenance of public order ought to have been called into question. Quite pointedly, the State has steadily clamped down even harder on dissidents in the last five years. An inclination to citing National Security and Terrorism has subsumed the State’s response toward protesters.  The insinuation of minority protesters being terrorists is a difficult connection to draw. Yet, the recurrence of such responses from the State affords us the opportunity to study them. In reviewing why arresting protesters is the first resort of the State, we learn that the criminal justice system in India moves in a step-by-step process toward handling dissent. The steps are that of delegitimizing the protest, proceeding to arraign strategic protesters and leaders in order to cripple the protests, othering and ultimately dehumanizing the protesters. This controverts the need for arresting protesters to meet any interests that the State may have.

Ex facie, much of the objection to the arrests of protesters is in challenge of the public-order contention that the arrests are disproportionate and illegitimate. At present, nearly all opposition against incarceration of student leaders and protesters comes from the credence that the arrests are intended to halt and derail protests. While this is true, the arrests of protesters and criminalization of dissent have ramifications outside of deterrence. Instead of a sound policy analysis of any interest that the State may have in the arrests, the disagreement with the incarceration of protesters has been restricted to solely the deterrent nature of the coercive action. 

Arrests and incarceration are not limited in their impact to only the immediate liberties of the arrested. They impact entire communities, families, lives, livelihood and the prospects thereof.²⁴ The implication being that it would do better to look at the grand scheme of the State in concerting these arrests than to simply question such arrests through the lens of the Constitutional doctrine. If one were to claim that the protest leaders are being incarcerated to prevent the collateral harms to non-protesting stakeholders, then it is conspicuous that these legitimate aims (if any) may be attained by less coercive State intervention. It is not possible to discern any bona fide interest that the public may have in having protesters arrested as opposed to having protests peacefully regulated. 

The arrest of protesters draws significant attention, often giving rise to distasteful rumours and narratives on social media. This has been experienced by protesters in terms of their affiliations, identities, and even marital status/pregnancy.²⁷

In February 2020, the arrest of 19-year-old Amulya Leona in Bangalore, for saying “Pakistan Zindabad” (Hail Pakistan) at an Anti-CAA protest was widely debated. Amulya was charged under the draconian provision for Sedition under Section 124A²⁸ of the IPC. The failure of the police to file a chargesheet within 90 days resulted in her being released on bail after 110 days in jail. However, following her arrest, several untoward incidents took place.²⁹ An unruly mob attacked her house at night, and a group of Bajrang Dal activists approached her father demanding that he condemn her activism. A member of the Sri Ram Sene group announced a reward of 10 Lakhs for anyone who kills Amulya in an ‘encounter’. Soon after, in apprehension of a threat to their life, Amulya’s family was placed under police protection.

How, then, can one say that her life would return to normalcy since she has been granted bail? This phenomenon of ex post facto suffering has also been well-documented in the protests that took place in the United States as a part of the Black Lives Matter movement (2020). Here, protesters were jailed (however briefly), charged with violating curfew and resisting arrest, with repercussions to the tune of unemployment, loss of housing and self-stigma.³⁰ The effect of such stigma is much more enduring than the psychological effect of confinement or even solitary confinement.³¹

In studying the correlation between the identities of protesters and their arrests/incarceration, there are two aspects that must be attended to. First, that the identities of the protesters itself is a cause for their arrest, and second, that the arrest of the protesters ascribes certain unpleasant identities to them.

The arrest of protesters in India is rarely on grounds of their protests alone. Any charges made against protesters for particular causes invoke labels associated with other identities. This could be in terms of religion, regional affiliations, ancestral history and even caste. For instance, the arrests of Anti-CAA protesters under the UAPA were primarily justified by the arrogation of labels to Muslims and those who protest for the cause of Muslims.³² On the spectrum of Citizenship, Muslims had been labelled as burdensome, socially regressive and culturally backward.³³ Therefore, in Charging Anti-CAA protesters, the regime transitioned from the Hindu/Muslim chasm to a Patriot/Anti-National polarisation. 

The representation of Hindus and Muslims as two very distinct and rival communities was among the most remarkable designs of colonial mapping.³⁴ While the Muslim identity had been demeaned by practice of majority domination, this perspective initially evaded those who did not subscribe to the Hindutva point of view. A material part of this dichotomy of ‘us’ and ‘them’ was reinforced much after independence and embedded into ideas of patriotism and nationalism.³⁵ This shift appears to have been adopted for reasons of it holding wider appeal among persons who did not necessarily identify as a ‘Hindu’, but definitely identified as a ‘Nationalist’.

Resultantly, the charges against protesters are not just on grounds of communal incitement but on grounds of ‘anti-national’ activity. This identity of an ‘anti-national’ is constructed in the paradigm of the Indian Government, today under the Bharatiya Janata Party. The most prominent sections who have been labelled ‘Anti-Nationals’ nearly include all identities related to social causes situated against the State. This includes Dalit Students, Left Intellectuals, Human Rights Activists, religious minorities, inter-religious/homosexual couples and so on.³⁶ This polarisation tactic forces all stakeholders to pick between agreeing with the Government’s policies or risk being labelled an ‘Anti-National.’ 

Simone De Beauvoir in her pioneering work on Othering,³⁷ explained the process whereby majority and minority identities are constructed. Othering is a long-drawn process which ignores or invalidates any real meanings of an identity and instead, makes the Othered group a representation of all those qualities that one wishes to dissociate from. It helps to set up identities in an unequal relationship.³⁸ ‘Othering’ simultaneously constructs our perception of self and our perception of the other, superimposing all perceived unbecoming qualities on the other. Further, othering promotes self-distantiating from any unascertained qualities possessed by the other. In drawing parallels, we see that the act of arresting certain groups of protesters and protest leaders immediately attributes to them certain qualities that the lay man is expected to dissociate from. These qualities include that of being seditious, an anti-national, a nuisance and a renegade. As a result of the othering process, persons who disagree with the incumbent Government’s policies will also distance themselves from the protests of student leaders and opposition ideologues for the sole reason that they cannot associate with what has been labelled an anti-national cause.

Dehumanizing is the outcome of prolonged and unfettered Human Rights violations, which is usually observed in context of inter-group conflicts where one group categorically dehumanizes the other group. This process includes attributing a lack of culture, fungibility and denial of agency, individuality, interpersonal warmth and cognitive openness to a certain category of persons.³⁹ They may be accused of unpredictability or aggressiveness based on their identities.⁴⁰

Previously, it was widely thought that dehumanization takes place in extreme situations such as refugee crises, genocide and war. However, research in the said domain has come to show that dehumanization processes are widespread, and can be a daily engagement to systematically denigrate the humanness of communities in inter-group conflicts.⁴¹ Recent scholarship has analysed the direct role of negative political campaigning in dehumanizing identities associated with certain political ideologies.⁴² Such political campaigning may include emphasizing the absence of morality, integrity, patriotism and trustworthiness. Dehumanization takes place through a variety of mediums in political contexts, including statements, rallies, news debates and social media storms.⁴³

The likening of protesters to animals or insects takes away from their human nature, while accusing them of greed, opportunism and insidious motives takes away from their cognitive agency and uniqueness. In the case of protesters, the dehumanizing narrative has been guided largely by right wing leaders, who attribute treason, terrorism, anti-nationalism and inhumanity to protesters and their underlying agenda. One of the most prominent instances of dehumanization is in the act wherein the Indian Prime Minister used the term ‘Aandolan-Jeevi’ (parasitic protesters) to refer to persons participating in the 2021 Farmers Protests. He called the protesters ‘Parasites’ who ‘feast at every agitation.’⁴⁴

Critical Race Theory expounds on the impact that academic exclusion can have on the nature of evolution that power structures undergo in the socio-legal scenario.⁴⁵ An absence of certain minority castes, minority religions, minority genders and their proponents from the academic circuit can have devastating effects on the cognitive future of that social group. These groups make contributions toward experiential knowledge and encourage their students to do the same. The working premise for academic inclusion contests the idea that scholarship from majority perspectives could ever be value-neutral. Moreover, Critical Race Theory refuses to accept scholarship on these social groups from members who are distanced, detached and objective about social issues.⁴⁶

Among several activists apprehended by the Indian Government in subduing protests, a significant number of accused were engaged in academic pursuits within and toward Dalit, Adivasi, Bahujan and Minority Scholarship. These include PhD Scholars like Sheila Rashid, Umar Khalid, Kanhaiya Kumar, Safoora Zargar, and Natasha Narwal.⁴⁷ In the Bhima Koregaon incident, among persons arrested are prominent academics Anand Teltumbde, Shoma Sen, Hany Babu, poets Varavara Rao and Sudhir Dhawale, and writer-researcher Gautam Navlakha.⁴⁸

The above-mentioned persons were engaged in academic teaching, research, scholarship and practice at the time of their incarceration, with several of them belonging to the minority communities themselves. This slew of arrests, therefore, can be said to have deliberately taken away significantly from contributions to intersectional literature, and dissuaded persons who wished to partake in the same.

There is a significant inter-relationship between community disorganization and criminal victimization. The incarceration of literate, forward and intellectual members of a certain community affects several important exogenous variables, including marriageability, heterogeneity, social mobility and socio-economic status.⁴⁹ The arbitrary incarceration of members of a particular community, therefore, would contribute directly to community disorganization.⁵⁰ The massive use of incarceration toward particular social groups takes away the stigma associated with arrest, and simply contributes toward social degeneration.⁵¹ This would mean that in arresting protesting members of vulnerable communities, the actions of the State are not limited to (or even related to) public order, but may be a form of social persecution.

It is well established in International Human Rights Law (‘IHRL’) that the right of association and assembly includes the right to protest. The arrest of protesters must be in consonance with Human Rights Standards and not in derogation of Article 9, Article 19, Article 21 or Article 22 of the International Covenant on Civil and Political Rights (‘ICCPR’). These provisions constitute the right against arbitrary arrest and detention, the right to freedom of speech and expression and the freedom of association respectively. India is a party to the ICCPR, and has the obligation to not act in derogation of those rights protected by the covenant. However, India’s last review under ICCPR was conducted in 1997⁵², and any standards under the ICCPR or any other international covenant may only serve as recommendations and not obligations for India’s treatment of protestors.

Article 9(3) of the ICCPR⁵³ states that:

‘Anyone arrested…. shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.’

Therefore, participants in social protests cannot be subject to arbitrary arrests or detention. If at all any arrest is carried out, it must comply with substantive as well as procedural aspects; the latter of which includes an immediate judicial review of that arrest/detention, as well as a trial within a reasonable amount of time. The Inter-American Court on Human Rights (‘IACtHR’) has held that any ‘programmed arrest’ of people without legal grounds, where the State claims that such persons represent a security risk or danger to others, without.